Y.Y. v Minister for Justice and Equality (No.6)

• Jurisdiction: Ireland
• Judge: Mr. Justice Richard Humphreys
• Judgment Date: 21 December 2017
• Neutral Citation: [2017] IEHC 811
• Docket Number: [2016 No. 774 J.R.]
• Court: High Court
• Date: 21 December 2017

BETWEEN

Y.Y.

APPLICANT

AND

THE MINISTER FOR JUSTICE AND EQUALITY

RESPONDENT

(No. 6)

[2017] IEHC 811

[2016 No. 774 J.R.]

THE HIGH COURT

JUDICIAL REVIEW

Asylum, Immigration & Nationality - S. 3(11) of the Immigration Act 1999- Refusal to revoke deportation order - Remittal to Minister

Facts: The issue in the present application was limited, which was whether the Court after quashing the decision of the respondent could remit the matter to the respondent for fresh consideration as the quashing of the original deportation order would not be suitable as the applicant was at a serious flight risk. The Court was presented with the applicant's second application under s. 3(11) of the Immigration Act 1999.

Mr. Justice Richard Humphreys remitted the applicant's application under s. 3(11) of the Immigration Act 1999 to the respondent for fresh consideration. The Court adjourned the hearing for deciding the validity of the original deportation order. The Court held that the second decision was quashed on procedural ground, namely, the failure to give notice of a particular document relied on by the respondent. The Court stated that the present case could not be categorised as the one in which it could be said that the findings of the respondent were totally illogical and irrelevant.

JUDGMENT of Mr. Justice Richard Humphreys delivered on the 21st day of December, 2017

1 Where a court is considering the validity of both an original administrative decision and a later decision on review to uphold that original decision, and where the later decision is quashed, should the court then go on to deal with the challenge to the original decision or alternatively should it give the decision-maker a further opportunity to reconsider the review decision?

2 The situation raising this question follows from my judgment in Y.Y. v. Minister for Justice and Equality (No. 5) (19th December, 2017), when I quashed a decision under s. 3(11) of the Immigration Act 1999 in respect of the applicant and left over for further consideration the question of the validity of the original deportation order. This present ruling should obviously be read in conjunction with the previous judgments in this matter. The options essentially are for me to move on to consider whether to quash the original deportation order, or alternatively to park consideration of the original deportation order for now and remit the s. 3(11) issue to the Minister for fresh consideration.

3 The theoretical framework for such an approach has already been discussed in my judgment in Y.Y. v. Minister for Justice and Equality (No. 4) [2017] IEHC 690 [2017] 10 JIC 1706. What happens at this point is discretionary and that discretion should be informed by a number of considerations, which I will now deal with in turn.

Considerations favouring the applicant

4 Mr. Michael Lynn S.C. (with Mr. David Leonard B.L.) for the applicant in an able submission suggests firstly that the original deportation order should be quashed because there have now been three decisions in this matter and that three, in effect, is too many. The situation ' cannot continue with the matter continually remitted to the Minister'. It seems to me that the number of previous decisions is potentially one factor to which regard can be had, but that there can be no arbitrary limit on the number of opportunities to consider a decision. Regard must be had to all of the circumstances. By way of an example in a different area, in Walsh v. The Governor of Wheatfield Place of Detention [2017] IEHC 680 [2017] 9 JIC 2903 I recently held that to allow five versions of a certificate justifying detention under Article 40.4 was not an excessive amount of indulgence.

5 The second matter on which Mr. Lynn relies is the fact that the applicant is in detention, and also the length of that detention, and that it is undesirable that should continue further. That is certainly something I do consider and I have attempted to deal with this matter as expeditiously as possible, although I...